The trust agreement in Peru

SUMMARY

The thesis called "The Trust Contract: Regulation and Development Prospects in Peru", is a contribution to the legal sciences, where I develop in a concrete and succinct way, the ways in which these contracts are carried out in the Peruvian market.

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Similarly, its origins, its variants, its complications, and; especially the new forms that are taking place in other countries.

In this sense, what I seek is to take into consideration the operators of the law, the importance of these contracts in the commercial world, as well as the forms with these contracts contribute to the creation of wealth in the country.

Similarly, I raise the need to regulate all variants, and the ways in which various contracts can be made, through a single legal format, which is translated into the trust agreement. It should be noted, then, that in Peru currently, the only trust contracts that have been regulated and are used are the so-called asset securitization trust contracts and the so-called guarantee trust contracts.

On the other hand, in other latitudes of America, these two forms have been expanded, as for example in the so-called, blind trust contracts, which are very common in Chile.

On the other hand, I raise the need to find a way to make these contracts better known by lawyers in Peru, since there are many of these, who do not know about the following: How are trust contracts written? ?, What are its virtues and legal implications ?, Who can participate in trust contracts ?, How many forms of trust contract exist in Peru ?, and; How many trust contracts are constituted by a legal rule?

ABSTRACT

The denominated thesis “The trust contract: Regulation and perspective of development in Peru”, are a contribution to legal sciences, in where development in form makes specific and succinct, the forms in which these contracts are made in the Peruvian market. Equally, its origins, their variants, their complications, and; mainly the new forms that come giving in other countries. In such sense, which I look for is to put in consideration the operators of the right, of the importance which they have these contracts in the commercial world, as well as the forms with these contracts contribute to the creation of wealth in the country. Equally I raise the need to regulate all the variants, and the forms whereupon can be made diverse contracts, through a single legal format, that is translated in the trust contract. It is possible to stress then,that at the moment in Peru, the only contracts of trust which they have been regulated and is used, been the denominated contracts of trust of securitization of assets and the denominated contracts of guarantee trust. However, in other latitudes of America, one has extended these two forms, like for example in the denominated ones, contracts of blind trust that are very common in Chile. Of another part, I raise the necessity to look for the form to do of which these contracts more are known by the lawyers in Peru, since they are many of these, those whom they do not know on way the following thing: How are written up the trust contracts ?, which are their legal virtues and implications ?, who can will participate trust contracts ?, how many trust contract forms exist in Peru?, and; how many trust contracts are constituted by a legal norm.

INTRODUCTION

At the beginning of the imminent expansion and economic growth in Peru, many companies do not assimilate the importance of the trust in the economy and finances. In times of full economic globalization, where the production of goods and services is done on a larger scale and in smaller and smaller stages, the application of the trust is necessary, as a source of economic resources and safeguarding the assets of companies. Considering for this, the singularity that these contracts have, which is, of mutual trust, facts that must always exist, even more within the law and the economy, and thus allow to finance the production of goods and services, for this globalized world. It is necessary that the legislators in Peru, regulate all possible, or failing that, the vast majority,of the various types of contracts that can be generated, through trust contracts. Those that currently exist in Peruvian legislation is an important contribution, but it would be better if they were annexed, those that may exist in the future, with the sole purpose of making it more efficient, where economic actors can use it more widely, under clear rules, making companies access sufficient financial and economic credits, as to produce, as for the internal consumption of our country, as to export and import on a larger scale, and above all, in good economic conditions.with the sole purpose of making it more efficient, where economic actors can use it more broadly, under clear rules, giving companies access to sufficient financial and economic credits to produce, as well as for domestic consumption in our country, as to export and import on a larger scale, and above all, in good economic conditions.with the sole purpose of making it more efficient, where economic actors can use it more broadly, under clear rules, giving companies access to sufficient financial and economic credits to produce, as well as for domestic consumption in our country, as to export and import on a larger scale, and above all, in good economic conditions.

The trust as a legal figure is old, but rather, it should be noted that over time it has been transformed, becoming a contract wrongly called by many authors and doctrines, as a modern contract, being currently indispensable for the formation of wealth in companies.

The trust in Latin America has proven to be of innumerable and great utility, especially with regard to the administration of assets, state privatization processes, channeling of public and private investments, solution of business crises, constitution of guarantees and, more recently, as another vehicle for the securitization of portfolios.

The trust, in our country, has proven to be efficient in various production companies, but ignorance of its virtues is, in various ways, due to the lack of doctrinal diffusion and the little practical use of private entities, the causes of which the trust agreement does not fulfill its role that the legislation gives it.

To clearly understand the operation of the trust, it is necessary to understand to what extent it can favor its use. In Peru, the trust is currently regulated by a law, the so-called Law No. 26702 (General Law of the Financial System and the Insurance and Organic System of the Superintendency of Banking and Insurance), which has been modified over time. It should also be noted that in our country we had already adopted the trust since Decree Law 770, General Law on Financial, Banking and Insurance Institutions, which clearly gave it a legal establishment of a banking contract, this up to the current Law No. 26702, that amply expands its scope, giving it its own characteristics, to the point that it can be used like any other private contract,but keeping its own and specific characters.

As a bank contract, the trust is an inexhaustible source of economic resources, translated into the possibility of financing, both as well as an instrument for the processes of securitization or securitization of assets, becoming a highly useful tool in capital markets.

Like any financial tool that is intended to be analyzed. In the trust we must ask ourselves for a proper judgment questions about its contribution to economic development and growth, its impact on private organizations, as well as establishing its causes and effects, such as innovation in the legal and financial field. But the importance of studying the trust agreement is essentially that he is a very flexible figure, since he has a wide variety of objectives, such as allowing the preservation of heritage in families, promoting the circulation of wealth through different means, such as money, various titles - securities, movable and immovable property, as well as rights and the constitution of guarantees covered by mortgages.

Because of what Dr. Adolfo Zegarra Aguilar pointed out in Peru, “talking about the fiduciary business is not very common, even for many businessmen, lawyers or law students it is very difficult in our environment to deal with the issue. This situation clearly shows the lack of dissemination of the aforementioned commercial institute in the legal, social and economic context in which we operate and also corroborates the complexity that this figure represents, especially taking into account the rigidity and inflexibility with which In the past, we learned some institutions of law. However, we consider that it is possible, with little effort, to know closely its nature and scope, without fear of failing in the attempt ”.Giving even more sense to the need to clarify many of the questions that the legislative and jurisprudential deficiency of this so-called legal figure that is the trust contract originates, it is therefore essential to carry out this research work at the Postgraduate level.

CHAPTER I

THEORETICAL FRAMEWORK

1.1 BACKGROUND

The history of the trust has more than two thousand years of existence, so much so that since the time of the Roman Empire these contracts were made. It is worth mentioning that originally it was used in order to avoid legal obstacles that prevented certain goods from being given a certain destination.

La base sobre la que se fundamentó desde el origen fue la confianza que el transmitente de un bien depositaba en el adquirente. La transferencia se realizaba en propiedad, teniendo el adquirente las facultades derivadas de su condición de dueño de la cosa de acuerdo con las instrucciones del transmitente. Frente al amplio poder jurídico que el transmitente daba al adquirente, éste se comprometía a usar ese poder en lo preciso dentro de los límites impuestos por el fin restringido acordado, al cual se apuntaba, respetando la voluntad de aquél.

With the passage of time and in attention to the abuses that the acquirer incurred by not respecting the fiduciary orders, his power over the transferred goods was limited, maintaining his status as legal owner but with powers limited by legal regulations and by the intervention of justice, which prioritized the will of the constituent and the rights of the beneficiaries over the right of property that he held.

1.2 HISTORICAL BASES

1.2.1 THE TRUST IN ROME

All the studies that have been carried out find the trust at the end of the Republic and the beginning of the Roman Empire.

In its beginnings it was limited to the succession acts and had a personal character, acquiring the nature of royal law from Justinian. Later it is extended to bilateral acts and specifically, to contracting. Consequently, it can be affirmed that the trust has its origin in Roman Law, since it gave it the corresponding regulations and legality, and above all that it came to solve several of the legal problems that arose at that time.

Among these we can mention, the problems to inherit, since according to Roman Law, some people, such as women, did not have the power to inherit property. For this reason, in order for the testator to carry out his will, a figure is born who, saving the legal problems that existed at that time, could make his will effective. This figure is the Trust Fund. It could also be established that once the purposes for which it was established have been fulfilled, the goods can be delivered to the beneficiary.

It should be noted that from that moment, an aspect that is extremely important in the case of trusts appears, which is trust, since the person who acquired the administrator rights in this way, could use the assets for their own benefit and even alienate them. This type of trust is characterized in that the transfer of assets takes place once its owner has died, and therefore it becomes a testamentary trust.

Later the transmission between alive appears. With its two main forms, the so-called fiduciae cum creditore and the so-called fiduciae cum amico.

The first represents a form of guarantee. In this case, the person who was requesting a loan from another was transferring their assets as collateral, while the loan was in force. Once the obligation was canceled, the assets were returned by the creditor to their respective owner. In its original form this figure was subject to abuse because in some cases the creditor could make unrestricted use of the assets in his favor. Subsequently, ways were found that this debtor's disadvantage was not so evident.

According to Sergio Rodríguez Azuero, this figure was of great importance, since it came to play a very important role, before the appearance of the guarantee documents as we currently know them. However, according to Rodríguez, it represented two major disadvantages:

When the creditor, abusing his position alienated the good, the debtor was in a difficult position, because, lacking real action, he could not pursue the good in the hands of third parties and had to limit himself to exercising personal action against his creditor who could declare insolvency or fall into a bad business situation.

The debtor did not have the possibility of keeping the property on a precarious basis, because if over time such possibility was consecrated, the creditor could always demand the delivery of the respective property.

The pactum fiduciae cum amico, what he wanted was for a person to deliver to another of his trust, the property of his property so that he could administer it according to the instructions received.

It also had the disadvantage that whoever received the good could abuse its use. ⁴

For these reasons we can affirm that in Roman law there were two legal figures regarding the trust:

The Fideicommisum that consists of the transfer of a good by means of a will from one person to another in which the constituent places its trust so that it administers that good in favor of another person or others that the testator wanted to favor. the agreement between two people where one of them, based on trust, gave the other a good to be used for a certain purpose. Depending on the purposes it served, it could be done in two ways: The fiduciae cun creditote that sought to satisfy a debt in the event of non-compliance with the obligation, (antecedent of the trust in guarantee). And the fiducia was the birthplace of the defense and administration of property while its owners went to war or were away for a long time.

The trusteeship in Latin means trust. It was not by chance or coincidence that the Romans named this contract with the same word that in their language meant trust, but they chose such a word carefully as it was undoubtedly the one that best expressed the nature and intimacy of this legal form.

1.2.2 THE TRUST IN ENGLAND

But it is recently at the time of the great conquests that the trust was announced in other latitudes of Europe, and later on the American continent. In Europe through the lands occupied by the Romans, the customs, customs and legal norms of the mother country were imposed: Rome. Thus, I reach the far lands of the Empire, now known as England (United Kingdom); and later the English, and later the Spanish, transferred these advances on the trust to the American continent, when the discovery and conquest of the new world began.

It is for this reason that when the invasion of the English islands by the Romans occurred, they introduced the trust, the same that materialized with some changes typical of the Anglo-Saxon mentality, creating the latter, mechanisms of use of the trust, such as the creation of special courts called “equity”. Later, with improvements in their legal structure, they would create the “trust”.

In English law, the background of the “trust” given by the writer Sergio Rodríguez Azuero in his book, Banking Contracts, is transcribed below.

From what he says with the background of the “trust”, it seems unquestionable, according to the authors, that he begins with the «use», understanding as such the transmission made to a third party with an obligation of conscience in favor of the transmitter or another beneficiary. Its use seems to have become popular due to the issuance of the statute of dead hands that prevented religious communities from owning real estate.

To obviate the inconvenience, the monks transferred or acquired, through a third party, ownership of a property intended to benefit the community. The constituent of «use» is called «feofor to use». It should be noted, however, that the "use" was also used to carry out testamentary transfers prohibited by law or in fraud of creditors.

Despite the English over the years and with the weight of new ideas, the "trust" was conceived, which passed to the English colonies in America and which later gained a great development in the United States of America and in Canada. It is necessary to note that in Anglo-Saxon law there are two categories of "trust": the express trust and the implied trust. The first is the one that is constituted by the express will of the settlor. Villalonga himself explains, quoting Claret and Marti that there are several classifications of the Express trustee. Thus, the executed trust refers, explaining that it is the one that, after having been definitively declared by the constitutive act, does not require, to produce all its effects, any subsequent act. It also refers to the executory trust, or eventual trust, in which the instructions are only an attempt to serve as a minute to perfect in a later establishment. There is also the instrumental express trust, according to which the trustee must strictly follow the instructions given.Mention is also made of the implied trust, which arises after the disposition of an equity tribunal and manifests itself in two forms: the rusulting trust and the constructive trust (José Manuel Villalonga Lozano, op. Cit., Pages 28 and 29).

Notwithstanding this, in Anglo-Saxon law, trust, as we already mentioned, originates from uses that are the antecedent of the today called trust.

In this sense, uses are defined as the commitment of trust that a person acquired when receiving the goods that were delivered to him by another.

In the English religious communities uses found the solution to the legal prohibition to own real estate, prohibition contained in the statute of dead hands, they found this institution analogous to fiducia the way to acquire real estate without violating said statute, institution to what they called uses, which consisted of the religious community finding a lay friend, who would buy the property in his own name but with money provided by the religious community, this buyer promised to use the property for the use of the community that had supplied the money.

Logically you use them as the Roman trust were also based on a relationship of trust, between the religious community and the acquirer.

While the trust, which is of Anglo-Saxon origin, is an institution where property is analyzed from a different point of view than the object on which the right falls, but from the interest or economic benefit that the property may report. It follows that two interests may exist over the same materially considered object.

The trust is characterized by collecting a dual form of property rights, a coexistence of two rights of ownership over the same property and each attributed to a different subject; a trust ownership and a beneficial ownership.

In Roman law, the so-called trust did not develop because the Roman tradition did not admit double ownership of the same property as it did in Common Law.

Once the trust was introduced to England, and later to Europe, to end up in America, the trust entered Peru. In our country, commercial trust was accepted in the commercial code and in the explanatory memorandum of the draft of said code, it is found that the trust is accepted in our legislation for the advantages it has offered in the commercial and banking field, this to Despite the fact that our law is essentially of Latin origin and not of the Common Law.

1.2.3 THE TRUST IN ARGENTINA

For Argentine legislation, the trust has a greater structural, conceptual and legal scope than in Peru; This is due to the fact that its existence in Argentine legislation has many more years than in our country. Thus, at present, the trust in Argentina is regulated by Law No. 24,441, which in its article 1 states that "there will be a trust when a person (trustor) transfers the trust property of certain assets to another (trust), who it obliges to exercise it for the benefit of whoever is designated in the contract (beneficiary), and to transmit it to the compliance of a term or condition to the trustor, the beneficiary or the trustee ». According to Karina Barbosa in the Argentine Legislation the trust (trust means "faith, trust", etc.) is a legal figure that allows to isolate assets, cash flows, businesses,rights etc. in an independent and separate estate for different purposes. It is an instrument widely used in the world. Its Anglo-Saxon counterpart is the trust and it has ancient roots in Roman law.

In Argentina it is perfected through a contract and is regulated by Law No. 24,441 "Financing of housing and construction" (articles 1 to 26 inclusive). This law is clear, the figure is considered safe and applicable to a wide variety of issues due to its characteristics and comparative advantages.

Observing its appearance in 1995, and what happened in other countries and considering the prevailing economic-financial situation, it is possible to assume that in the Argentine Republic, the application of this figure would maintain the strong growth that has been manifesting.

A trust exists when in a contract a person transfers the ownership of certain goods to another, where the latter exercises it for the benefit of whoever is designated in the contract, until a term or condition is met.

The trustee, who manages the assets, must act with the prudence and diligence of the good businessman, based on the trust placed in him, in defense of the trust assets (since he behaves as the new "owner") and the objectives of the trust. If not, the trustor or the beneficiary may demand compensation for the damages and losses caused.

The trust is not the only institute that allows you to carry out a business, it simply has certain advantages for which it deserves to be evaluated.

In essence, the use of the "trust" figure allows the investor to invest his capital in a business that will be managed by an expert who acts with the prudence and diligence of the good businessman. It is proposed as a legal instrument, since it is consistent with the principles of trust with which many businesses have been carried out for decades.

The trust figure can be used for multiple purposes. It has the advantages of allowing the creation of legal structures that are very precisely adjusted to the desired objective.

The trust does not ensure returns, but rather ensures experience, diligence and honesty in running the business. Attempts to push the trust figure as a business panacea are dangerous mistreatments that can condition the use of a useful tool.

Taking into account the absence of a financial system and the impossibility of companies to obtain formal and informal financing, it is appropriate to evaluate the trust as a mechanism that allows formalizing existing businesses and expanding it to investors who previously did not participate.

1.3 THEORETICAL FRAMEWORK

The theoretical framework that is used as a dogmatic, legal, jurisprudential support in our scientific analysis of the subsequent thesis, is made up of theoretical approaches, norms and profitable experiences of public and private entities similar to the creation of the trust contract.

Theoretical approaches include concepts and basic principles of the trust contract, the same ones that have as their essential purpose to clarify the panorama of legal research.

To be able to do this, it is essential to clearly establish what a contract is, what types exist in our legislation that have to do with the trust, what essential requirements we must maintain and respect, and to what extent the contracting parties can prevail the obligations printed in this type of legal document.

It has been considered essential to clearly define the following basic concepts for the theoretical framework:

1.3.1 THE CONTRACT

In our legislation there is no business law or company law as such, so almost all contracts are specifically subject to the provisions of the Peruvian Civil Code and scattered laws. Consequently, according to the provisions of Article 1,351 of the Civil Code in force, the contract is the agreement of two or more parties to create, regulate, modify or extinguish a patrimonial legal relationship. Likewise, pursuant to Article 1,352 of the same legal body, it establishes that contracts are perfected by the consent of the parties, except those that, in addition, must observe the form indicated by law under penalty of nullity.

It is worth mentioning, in part, that the trust agreement in our legislation is considered an unnamed contract. In other words, it is subject to its own legislation. Therefore, article 1,353 of the Peruvian Civil Code establishes that all contracts under private law, including unnamed ones, are subject to the general rules contained in this section - Sources of Obligations, Section One, Contracts in General - except as they result. incompatible with the particular rules of each contract.

It is also worth mentioning that Cabanellas defines contracts as the convention, for Aubry and Rau, it is the agreement of two or more people on an object of legal interest; and the contract constitutes a particular kind of convention, the proper character of which is to be a producer of obligations.

1.3.2 THE TRUST

It is a type of contract established by a special law (Law No. 26702), but whose mechanism and commissioning have particular characteristics. In this sense, it is worth noting the definition given by the Banco de la Nación - it is a banking operation that is formalized through a contract, through which you, as Trustor, will entrust the administration of your assets (assets, funds, etc.) or a part of it to the Trustee, so that, according to a determined purpose, he manages it and transmits it to a beneficiary person (contractor, concessionaire, yourself or others) called Trustee.

According to the doctrine, the Trust is a contract, since it frames the will of two or more people to create, transmit, recognize, declare, modify or extinguish rights and obligations. ^eleven

Despite this bank assessment, which gives it only a contractual form, many doctrines give a more formal scope to the trust, for Cabanellas for example, this type of legal figure is based on the provision of last will by virtue of which the testator leaves his assets, or part of them, entrusted to the good faith of a person so that, when he dies in turn, or when certain conditions or terms are met, he transmits the inheritance to another heir or invests the estate in the way that is point.

But etymologically we can point out that the trust has a more complex character, so that as the Anaya Dictionary of the Language indicates, trust comes from the Latin fideicommissum which is equivalent to (fides = faith plus commissus = trust). Action of handing over an inheritance to someone to do with it is pointed out to them. ¹³

The trust can be summed up as a "trust assignment", that is, giving something to someone who is completely trusted to manage it. Since that something can be anything from real estate to money, the options presented by the trust can be practically innumerable.

Legally it is a contract by means of which a person destines certain goods for a determined purpose to some specialized institution.

There are three actors in this mechanism. The person who makes the order is called the "settlor", who receives it is the "trustee" and the person to whom the benefits of that order are delivered is called "trustee".

The main task corresponds to the fiduciary, who must be in charge of administering the trust, its accounting, inventories, keeping confidentiality regarding the operations carried out and information obtained, among others.

In addition, the accounts must be submitted to the settlor and the respective authority, in the case of Peru, to the Superintendency of Banking and Insurance (SBS).

1.3.3 PUBLIC TRUST

In Peru, there is still no legislation on this particular type of contract, since in our legislation it only establishes the existence of two types of trust contracts: that of guarantee and that of securitization of assets (financial). In my opinion, it is important to request our legislators or congress representatives to regulate and legislate in this regard, so that Peruvian public entities benefit from the virtues of this type of contract. It should be noted that in other countries more doctrinally advanced with respect to this type of contract, it is very common to see the application of the trust by the state, calling it a public trust.

In this sense we can point out that in Argentina the public trust is the entity of the parastatal public administration created for a lawful and determined purpose, in order to promote economic and social development through the management of certain resources that are contributed by the Federal Government and administered by a fiduciary institution. The structure of the public trust is made up of three elements: the trustees or beneficiaries; the trustor, attribution that corresponds only to the secretariat of finance and public credit; and the Trustee, which can be any national credit institution or society.

1.3.4 TRUSTEE (A)

It comes from the Latin fiduciarius which is equivalent to fiducia = trust. That he receives assets from an inheritance with the obligation to transmit them to another person even though he may enjoy them in the meantime. ¹⁵ Generically, a trusted person to whose good faith and conscience the testator entrusts a reserved commission or some order to deliver it to another person.

Heir or legatee of a trust. The person in charge of carrying out the purpose for which the Trust has been established. In Mexico, only credit institutions duly authorized for this purpose can be fiduciary.

Credit institution expressly authorized by law that has ownership of the assets or trust rights. It is in charge of the administration of the trust assets by means of the obligatory exercise of the rights received from the trustor, arranging the necessary for the conservation of the constituted patrimony and the fulfillment of the objectives or instructions of the trustor.

Pursuant to the provisions of the General Law of the Financial System and the Insurance System, in our country, the Corporación Financiera de Desarrollo SA (COFIDE) may act as trustees, (b) Multiple operations companies, (c) fiduciary service companies and, (d) the insurance and reinsurance companies that had obtained the operating authorization to carry out this type of operations.

It should also be mentioned that securitization companies may be fiduciaries in cases of securitization trusts.

1.3.5 TRUSTEE

For Cabanellas, it is succinctly the testator who has a trust; that is, it entrusts the trustee with the transmission of the assets to the trustee. But expanding its definition, it can be affirmed that it is the person who owns the goods or rights, which they transmit to the trustee for the fulfillment of a lawful purpose, and must have the legal capacity to compel themselves to dispose of the goods.

1.3.6 TRUSTEE

It is the physical or legal person who has the legal capacity to receive the benefit that results from the object of the trust, with the exception of the trustee himself.Furthermore, it is the person who receives the benefit of the trust (it does not always exist), or the person who receives the remnants once the purpose pursued through the Trust has been fulfilled. From a technical perspective, there may be various trustees and various trustees, but generally a trustee.

1.3.7 FIDUCIA

Old-fashioned synonym of trust. In Roman Law, a contract transferring the property of a thing to the creditor, for the judicial manipulation or transfer of the same, with the promise that the creditor made to return the thing after it had been paid.

1.3.8 GUARANTEE ESCROW

The guarantee trust is an atypical type of contract, by which, through this modality, the trustor transfers the trust property to a trust bank in order to guarantee an outstanding credit with a third-party creditor. If the debtor does not pay his contracted obligation, the trust bank is empowered to auction off the property, in the form and conditions agreed in the articles of incorporation; the proceeds of this sale must be used to pay the creditor. Nevertheless, through this modality, the trustor transfers the trust property to a bank in order to guarantee a credit pending payment with a third-party creditor. If the debtor does not pay his contracted obligation, the trust bank is empowered to auction off the property, in the form and conditions agreed in the articles of incorporation; the proceeds of this sale must be used to pay the creditor.

1.4 CONCEPTUAL FRAMEWORK

1.4.1 THE ESCROW CONTRACT IN PERU

As a valuable, essential and unique instrument, the trust contract in Peru currently already has a legal framework, the same that is substantially framed in Law No. 26702. But despite this legal reality, the trust was introduced in our country from long ago, so much so that a valuable predecessor of the legal framework of the trust, we located it with the passage of Law No. 9912, promulgated on January 21, 1944, in the government of Manuel Prado, signed with the title: “Provided that the money and values of the subjects of the Axis, which are subject to the restrictions established by Laws 9586 and 9592 and by the Supreme Decrees of December 8, 1941 and April 10, 1942, will be delivered to the deposit box and appropriations in trust ”. However, already in 1977,the Morales Bermúdez government enacted Decree Law No. 22006, called as “they authorize Banco Agrario del Perú to replenish the debit balances of Ex-trust sub-loans.

For many doctrinaires there are discrepancies regarding the exact moment in which the trust contract was known for the first time as such in our country, in this sense Javier Rodríguez Velarde clarifies that “in Peru, on the other hand, the trust was not present in the Civil Code of 1852 and that in the Civil code of 1936 hardly any mention was made of the trust in articles 1024º and 1807º, on the constitution of a mortgage to guarantee titles transferable by endorsement or to the holders and for the issue of mortgage bonds, respectively. Something similar happened in the Civil Code of 1984, in the GSF Law expressly legislates on the trust contract, dedicating 34 article from Article 241, whose rules have been regulated by the SBS by Resolution No. 1010-99 of 11 of November 1999.

The trust in Peru is formalized through a contract. On this, which is a species of the genus "fiduciary business" - as we have previously said - the national commission for the protection and defense of users of financial services in Mexico, in the document entitled the trust is a commercial contract ”(10) has said that: By virtue of the trust agreement, a person who will be called the trustee, will deliver goods or rights to another who will be called the trustee, so that it can administer them and carry out with them the fulfillment of legal, determined and possible purposes; once these are fulfilled, allocate the assets, rights and benefits provided and those that have been generated in favor of another person named trustee,which may be the trustor himself - Later he adds - The trustee will have control of the assets, with the limitation that he may perform only those acts necessary for the fulfillment of the purpose for which the trust was established. ²⁷

1.4.2 THE ESCROW CONTRACT TODAY

The trust is a contract by virtue of which a person called the settlor transfers, in fiduciary domain, assets or rights to another person called fiduciary to administer them in favor of another beneficiary.

Pursuant to Article 241 of Law No. 26702, the trust is a legal relationship by which a person, called a trustor, transfers one or more assets to another person, called a fiduciary, who is obliged to use them in favor of that person, or a third party, called trustee, constituting trust assets.

For the Trust and Business of Trust Services Regulations- SBS Resolution No. 1010-99 of November 11, 1999, in its 2nd Article. It conceptualizes the Trust as: It is a legal relationship by which a person, called the settlor, transfers assets to another person, called the trustee, for the constitution of a trust property, subject to the fiduciary domain of the latter and subject to the fulfillment of an end or specific purposes in favor of a third party or the trustor himself, who is called trustees.

According to Javier Rodríguez Velarde: From the definition we will extract the following elements:

It involves a legal relationship and is expressed unilaterally, through a will, or plurilaterally, depending on a contract. The owner of a property or goods that transfers his property in favor of another subject, called fiduciary, is known as a trustor. It has all the attributes of the property (the Jus abutendi does not work and it is not perpetual but temporary) and arises on the condition that the trustee uses said assets in the intended destination of the constituent instrument. The use may be in favor of the settlor or a third, which is the trustee.The trust equity is different from that of the trustor, the trustee and, where appropriate, the recipient of the remaining assets.

In summary, we could point out that the trust cannot exist, unless it is, it is not reflected in a contract, that is, it is in writing, it is lawful, it is subject to being verified by the contracting parties, and above all that In its structure there are the participation of three fundamental actors, the same that for this type of contract are called the settlor, trustee and beneficiary.

1.4.3 DEFINITION OF A TRUSTEE BUSINESS

By fiduciary business we understand a manifestation of will with which an ownership of the right is attributed to another in his own name but in interest, or also in the interest of the transferor or a third party. The attribution to the acquirer is full, but the latter assumes a mandatory link in order to the destination or use of the assets of the patrimonial entity.

Another definition is as follows.- It is a contract by which a constituent transfers all or part of its assets or rights to a fiduciary who, having these assets and rights separate from his personal assets, acts with the determined purpose for the benefit of one or more beneficiaries according to the stipulations of the contract.

These definitions imply very important aspects to understand the figure of the trust.

Transfer of Property.- The trust implies the transfer of the ownership of the trust assets, that is, when a trust is created and the goods are delivered, this delivery is not made as mere administration, but its property is transmitted, not to the administrator or fiduciary but to the trust. The trust is considered an autonomous patrimony, a definition to which we will return later.

Conditional Transfer.- The property is transferred conditionally to fulfill a specific purpose entrusted by the person who delivers its assets in administration. The transmission implied the obligation to fulfill a specific purpose given to the goods.

Benefit for Another.- The trust is made in order to benefit a third party or it may be the same person who delivers the goods for its administration through a trust. In accordance with Costa Rican legislation, which we will study later, it is not possible for the administrator of the trust to receive the benefits derived from it.

Administration of Assets.- The trust figure gives one of the parties the administration of the assets of another. As the best thing is that this is in the hands of professional administrators, in some countries, their laws allow the administration of trust assets to fall to specialized legal entities such as banks or financial entities. In Costa Rica, it is established that any natural person can perform fiduciary duties. In the case of savings and credit cooperatives, on one occasion, the regulatory authorities made the determination that this type of organization could not manage trusts. However, the Constitutional Chamber ruled in their favor, in the sense that they can act as trustees.

1.4.4 TRUST EQUITY

The trust equity is made up of the assets transferred in trust and the fruits they generate. The trust estate is different from the trustor, the trustee, the trustee, from any other trust estate managed by the trustee and, if applicable, the remaining recipient.

1.4.5 LEGAL REGULATION OF THE TRUST CONTRACT IN PERU

According to the legal regulation of Peru manifested by Dr. Adolfo Zegarra Aguilar: The bank trust or guarantee in Peru is a typical commercial figure of the banking event, as in many other places. It is regulated by Law No. 26702, General Law of the Financial and Insurance System and Organic Law of the Superintendency of Banking and Insurance.

There is also the securitization trust, the same that is regulated in D. Leg. No. 861, Securities Market Law, figure that is different from the one commented in this text.

In other words, in our country there are only two types of trusts: the bank or guarantee trust and the securitization trust. Both due to their legal nature have different characteristics, but due to their affinity they have the same origin.

1.4.6 TERM OF TRUST

In Peru, the legislation attributes to the trust some premises, which must be considered to terminate a trust contract. Thus, the bank trust contract can conclude by resignation of the trust company based on justified cause and approved by the SBS; for the removal of the trust company; for the loss of the assets that make up the trust or a substantial part of them; for having fulfilled its purpose; Also due to revocation of the settlor or due to the expiration of the period established conventionally or, in the absence of the term established by law, it is thirty (30) years.

Law No. 26702, General Law of the Financial and Insurance System and Organic Law of the Superintendency of Banking and Insurance in its Article 269, establishes the term of the Trust as: The trust ends by:

Resignation of the company, with justified cause, accepted by the Superintendency. Liquidation of the fiduciary company. Removal of the fiduciary company. Express resignation of all the trustees to the benefits granted by the trust. Loss of the assets that comprise it or of substantial part of them in the judgment of the fiduciary company. The purpose for which it was established has been fulfilled. It has become impossible to carry out its purpose. Resolution agreed between the settlor and the trustee, with the approval of the trustees in the case of the first paragraph of the article 250º. Revocation by the settlor, before the delivery of the goods to the fiduciary company, or prior compliance with the legal requirements, except as provided in the first paragraph of article 250º.

In the cases of numerals 1, 2 and 3, the grounds operate if within the term of six (6) months no other company is found to assume the position.

If the revocation referred to in number 9 is partial, the trust subsists with the assets that are part of the patrimony.

1.5 ESSENTIAL FEATURES OF THE ESCROW CONTRACT

There are various doctrines that give different types of characteristics to trust contracts, this logically depends on the country of origin and the prevailing legislation in the various countries, which regulate and direct these types of legal tools, for this reason and for the sake of clarifying the prevailing vision, we mention three doctrinaires, the same ones that clearly and precisely explain what are the characteristic elements of trust contracts, thus we have:

ESCROW AGREEMENT

BRAVO ESCATE PERU

KARINA BARBOZA ARGENTINA

MAX ARIAS PERU

General Contract Of a temporary nature

Exclusively

Royal and solemn contract

Consensual contract

Bilateral contract

Onerous contract Autonomous and main contract

Frame transfer of good

Consensual contract

Bilateral contract

Onerous contract

Non-formal contract

Onerous contract

It is autonomous

It is typical

It's complex

It is constitutive

It is commutative

Of successive tract Of reciprocal benefits It is formal

1.5.1 BRAVO ESCATE

Peruvian doctrine that indicates that the main characteristics of the contract brought up are the following to take into account:

2.5 HYPOTHESIS AND VARIABLES

2.5.1 HYPOTHESIS

2.5.1.1 GENERAL HYPOTHESIS

The creation of new legislation that regulates the trust agreement in Peru will generate confidence for its use by lawyers, therefore would generate development prospects in the financing of private companies.

2.5.1.2 SPECIFIC HYPOTHESIS

The methods and techniques in the creation of new legislation in the process of formulating new forms of constitution of the trust contract, contribute to organizing and developing economic financing policies in private companies, thus contributing to the results, to the creation of wealth and prospects for the development of trade in Peru.

2.5.2 VARIABLES

2.5.2.1 INDEPENDENT VARIABLE

The new trust contract legislation will generate new forms of financing for private companies in Peru.

2.5.2.2 DEPENDENT VARIABLES

The prospects for development in Peruvian trade will be based on the creation of new legislation on trust contracts. The new legislation on trust contracts in Peru, organizes and develops legal certainty in private companies.

2.6 OPERATIONALIZATION OF VARIABLES

The variables must be decomposed into dimensions and these in turn translated into indicators that allow direct observation and measurement.

Variable: The new trust contract legislation in Peru.

Variable: The development prospects in Peruvian companies that allow them new forms of financing due to trust contracts.

Operationally:

The creation of new laws that regulate the trust contract in Peru will create new ways of financing Peruvian companies economically, generating prospects for development at the national level. Little or no creation of new legislation that regulates trust contracts. in Peru, less way to create wealth through business financing, and with this there would be no development prospects in Peru

Conceptual definition: The trust contract, the laws that regulate it, the forms that can be applied, the new forms that should be legislated.

Indicator: The current regulations that regulate the trust agreement in Peru.

Instrument: The survey. The same that was made to the various direct actors, including officials and workers at all operational levels, on the use and knowledge of trust contracts in Peruvian companies.

CHAPTER III

METHODOLOGICAL STRATEGY

3.1 TYPE, LEVEL AND DESIGN OF INVESTIGATION

To cover the presented objectives, the thesis adopts an interdisciplinary approach that combines qualitative and quantitative methods, and is divided into three main parts. The first part is theoretical-analytical and aims to describe and discuss the concept of the trust agreement and its implications as a development perspective in Peru.

The second empirical-analytical part aims to investigate the interpretation of the concept and its practical application by companies in Peru through different instruments of current and future legislation. The third part, interpretative, aims to discuss the empirical results obtained in the second part and make proposals for the business management of trust contracts.

Likewise, this research study corresponds to a type of applied research, considering for its methodological effects at the research level:

3.1.1 DESCRIPTIVE

Because it descriptively frames the various components that make up the new forms of trust contracts in Peru, thereby generating their proper use by lawyers, generating new ways of business financing and with it development prospects in Peru.

3.1.2 EXPLANATORY

Because it explains the details of the lack of legislation that regulates trust contracts in Peru, and how it could be improved with the creation of new legislation on the matter.

3.2 SAMPLE POPULATION

The population are all the few Peruvian companies that during the time that various laws regulating the trust contract were enacted have not made use of this legal tool, making it a matter of scientific research. In this sense, we must affirm that the population was made up of all the executives and administrators who were found working in 2008 in the companies where the investigation was carried out, which amounts to 58 people.

CHAPTER IV

TYPE, LEVEL AND DESIGN OF INVESTIGATION

4.1 INFORMATION COLLECTION TECHNIQUES

Among the information collection techniques applied to this research we have:

4.1.1 THE OBSERVATION

It has been possible to obtain information that within the Peruvian companies that have made a trust agreement to finance part of their assets we have the agro-export company Sociedad Agrícola DROKASA SA For which some of their private documents in which it is held have been observed. an asset securitization trust agreement. Likewise, the infrastructure and other documents related to the investigation have been observed.

4.1.2 LEGAL-BIBLIOGRAPHIC INVESTIGATION

We proceeded to investigate literature that is useful for the purpose of the investigation of this thesis, as well as access to norms and laws, interpreting its content to detect and obtain relevant information.

It is worth mentioning that bibliographic research has the fundamental characteristic that it has been selective, because it is evident that it is always necessary to select the most important and recent.

4.2 INFORMATION COLLECTION INSTRUMENTS

4.2.1 THE INTERVIEW

Interviews were conducted with various managers of Peruvian companies that have entered into trust contracts. Among which we consider the legal representatives of the company Sociedad Agrícola DROKASA SA in view of the fact that this company has entered into an asset securitization trust agreement to access financial credits through the Stock Market with bond issuance. (See Annex No. 02).

4.3 TECHNIQUES OF ANALYSIS AND INTERPRETATION OF DATA

Jurists and doctrinaires often find data analysis to be the most enjoyable part of conducting a study of law, law, and society, given that after all the hard work and waiting, they have a chance to find the answers. If the data does not provide answers, it is one more opportunity for creativity. So the analysis and interpretation of the results are the “prize” that rewards the work of data collection.

The data, however, does not "speak for itself." They reveal what the analyst can detect. So when the novice researcher, trying to get this reward, comes across only the data set and no idea how to proceed, the feeling may be one of more anxiety than enthusiastic anticipation. As with other aspects of a study, the analysis and interpretation of the study must be related to the objectives of the study and the research problem. An often useful strategy is to start by imagining or even tracing the manuscript (s) that should be written from the data.

The usual approach is to start descriptive analysis, explore, and “feel” the data. The analyst then turns his attention to the specific questions posed in the study objectives or hypotheses, the findings and statements reported in the literature, and the patterns suggested by descriptive analyzes. Before beginning the analysis seriously, however, a considerable amount of preparatory work usually has to be done.

4.3.1 ANALYSIS - MAIN OBJECTIVES

Evaluate and enhance the quality of the data. Describe the study population and its relation to some supposed source (justify all the few possible forms of trust contracts; comparison of their uses objectively obtained from the companies. Evaluate the possibility of biases (p (eg, non-response, refusal to answer, comparison groups). Estimate measures of frequency and extension (prevalence, incidence, mean, median). Estimate measures of association strength or effect. Evaluate the degree of uncertainty from Control and analyze the effects of other relevant factors. Seek a better understanding of observed or unobserved relationships. Assess impact or significance.

4.3.2 ORGANIZATION, PROCESSING AND PRESENTATION TECHNIQUES

The organization of the data began with the process of coding the responses, then the data was processed using the SPSS version 12 statistical package.

Data analysis is fundamentally quantitative. Considering the level of research, descriptive and correlational statistics were applied.

The results are presented through frequency distributions and graphical representations.

The hypotheses were tested using the "Z" test, with a significance level of p = 0.05.

CONTRACTING OF HYPOTHESIS

1.- Statistical Hypothesis:

a) Null Hypothesis (Ho)

The use of trust contracts was not widely used by law operators in Peruvian companies during 2008.

b) Alternate Hypothesis (HA)

The use of trust contracts is widely used by law operators in Peruvian companies during 2008.

2.- Choice of Test:

CONCLUSIONS

The creation of a specific institute for the registration of trust funds and of the contracts of the commitments assumed, together with a professionalized practice, present in the evaluation and control stages of investment projects and their financing, would enhance the development of specific activities. and regional of the country. In economic-financial matters it is necessary for professionals to control compliance with processes and the degree of satisfaction obtained (time, quality, prices, etc.) that can be generated by trust contracts to companies in Peru.The enterprises must be categorized. The most important parameters are: the investment, the terms, the returns and the risks associated with the activities.The evaluation may be individual for each undertaking and also for a set of businesses (each with its own individuality), which will make up an investment portfolio. All this is reflected in the trust contracts, in order to make them clear and precise, so that they can be used by lawyers more broadly.The trust contract in the real economy guarantees the investment and the emerging results expected from it. starting from a transparent process, predictable operations and clear guidelines, considering both private and general interests, and linking trade with technology, labor and finance in a truly integrative way. The intensive application of financial instruments, such as escrow,It would facilitate the production of operations in the productive economy. They facilitate the decisions to be made, considering both particular and general issues. Entrepreneurs will consider technological, commercial, economic, financial, and internal, regional and external markets; the State will take into account the growth of the product, the levels of occupation, the quality of employment and the tax collection, the investors will focus on the yield and the risk of the investment. The financial entities can take an active part in the constitution of the trust funds, but also other entities, with the approval of the respective enforcement authorities, may assume the role of trustors. In this way,capital generation mechanisms and a closer link of productive activity with finances would be fostered. With the financing of private projects and with the formation of a purchasing club, consortia and the presence of international tenders, products can be exported and imported supplies and equipment. The use of the trust must start from a situation diagnosis and a careful analysis of the mechanisms that are to be included in the contract. The designs conceal a balanced and precise incentive structure for all participants. They must be consistent with the background and situation of each of the participants. Good design does not imply success Problems it presents: lack of jurisprudence,Lack of doctrinal promotion and especially little jurisprudence of judicial processes that have trust contracts as a controversial element. The legal professional must play an integrating role against this legal instrument that is the trust contract, identifying its possibilities of application, both in relation to the strategic conception as regards the operation of schemes that may be required by corporations, SMEs, civil associations, families or individuals.both in relation to the strategic conception and regarding the operation of schemes that may be required by corporations, SMEs, civil associations, families or individuals.both in relation to the strategic conception and regarding the operation of schemes that may be required by corporations, SMEs, civil associations, families or individuals.

RECOMMENDATIONS

We propose a sequence of actions that should be taken into account for the strengthening of the trust agreement as a system and instrument at the service of companies, and that these, in turn, contribute to the development of the national economy, first, and then serve as source of income for the tax coffers, secondly; so we recommend:

Define an existing trust contract system for its various types and that may exist later in time. Prepare a strategic plan for the trust contract. Define objectives for the trust contract. Prioritize the objectives of the trust contract. Diagnosis of the information systems and technological support of fiduciary companies. Define private and general information for trust contracts. Determine activity schedules. Follow up on the activity schedule. Create a permanent newsletter where any natural or legal person obtains the information regarding companies that have entered into trust contracts on their assets.

INFORMATION SOURCES

INTERNET PAGES

Bank of the nation-http: //www.bvl.com.pe/index_fide.html, 11/22/[email protected], 12/25/2008. Http: //comunidades.calle22.com /comunidades/219/com219con30.asp, 12/12/[email protected]–Barboza, Karina, www.monografias.com, 12/25/2008.http: //www.zonagratuita.com/curiosidades/DicEconomia /F.htm, 12/26/[email protected] Ramón Lozano Rodríguez, Topic: The Endorsement and Certificates of Judicial Deposit, www.monografías.com, 12/27/2008.http: // www.peru.gob.pe, 12/12/2008. http: //www.congreso.gob.pe, 12/30/2008. Zegarra Aguilar Adolfo, http://usuarios.cepymenet.com/lex-web/fidei.html, 12/20/2008.

LAWS

Bill of credit facilitation, in Uruguay, Bill No. 4579, in Peru, Law No. 26702 - General Law of the Financial System and the Insurance and Organic System of the Superintendency of Banking and Insurance, Legislative Decree No. 861, Securities Market Law. SBS Resolution No. 1010-99 (11-11-99), Regulations of the Trust and Fiduciary Services Companies. The Civil Code in force.

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ARIAS-SHREIBER PEZET, Max; ARIAS-SHREIBER MONTERO, Ángela; VEGA MERE, Yuri; and RED WALL, Manuel (March 1999): Modern Contracts. Gaceta Jurídica Editores SRL, First Edition. BRAVO MELGAR, Sydney Alex (1997): Modern Business Contracts. Volume I, Editora Feca T. Lima. BRAVO MELGAR, Sydney Alex (February 2003): Atypical and Unnamed Contracts –Modern Business Contracts-, Ediciones Iberoamericana EIRL, Lima.CABANELLAS DE TORRES, Guillermo (1989): Elementary Legal Dictionary. Cultural CUZCO SA, Editors, Lima-Peru. DICTIONARY ANAYA DE LA LENGUA (1980): Servicios Editorialiales y de Empresa SA, Ediciones ANAYA, SA, Madrid. GARRIGUES, Joaquín (1975):Bank contracts. Second edition revised, corrected and updated by Sebastián Moll, printed in Spain, Aguirre press. SOLER, Osvaldo; CARRICA, Enrique; NIETO BLANC, Ernesto and MORENO GUERRA, José (February 2000): Trust. Buenos Aires. LAVALLE ZAGO, Eduardo (2008): Modern Contracts. Legal Editions, Lima Peru. RODRIGUEZ VELARDE, Javier (September 2000): Banking Contracts and Instruments, Doctrine-Models-Banking Legislation. RODHAS Editorial.

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